Pulakis v. State, 1108
| Decision Date | 09 November 1970 |
| Docket Number | No. 1108,1108 |
| Citation | 476 P.2d 474 |
| Parties | Thomas PULAKIS, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
R. Collin Middleton Asst. Public Defender, for appellant.
R. Collin Middleton, Ketchikan, for appellant.
Benjamin O. Walters, Jr., Asst. Dist. Atty., Harold W. Tobey, Dist. Atty., and G. Kent Edwards, Atty. Gen., for appellee.
Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and FITZGERALD, Superior Court Judge.
In this appeal, appellant asks us to reverse his conviction of the crime of larceny. The principal ground advanced by appellant is that it was plain error on the trial court's part to have admitted into evidence the results of polygraph examinations which were given to him prior to trial. Appellant further claims that he should have been granted a judgment of acquittal because the prosecution failed to produce sufficient corroborative evidence of the testimony of its chief witness, and alleged accomplice. Appellant also argues that the entry of judgment of acquittal was required because the prosecution failed to prove that the victim of the larceny owned the property alleged to have been stolen. We affirm the judgment and commitment entered by the superior court.
Turning first to the two subsidiary issues in this appeal, we believe that our opinion is Stewart v. State 1 requires rejection of appellant's position that the state must prove, as an essential element of the crime of larceny, ownership of the property allegedly stolen. In Stewart, we said:
Concerning appellant's contention that the indictment was insufficient because of its failure to specify that the Super S Store was an entity capable of owning property, we hold that such an allegation is unnecessary. All that is required to be alleged in this regard in charging the crime of larceny in a building are facts showing that the property taken was not the property of the accused. 2
The 'property of another' phrase in larceny statutes ordinarily refers to possession, not title, because the gravamen of the offense is the interference with another's possession of property. 3 In the case at bar, the prosecution's evidence sufficiently established that the ring in question was taken without the consent of its possessor, the McKinley Gift Shop. Under Alaska's larceny statutes, the prosecution's proof was sufficient.
In his second specification of error, appellant asserts that the state's evidence was legally insufficient to corroborate the testimony of the accomplice Renee La Cour. Appellant argues that apart from the inadmissible results of the lie detector tests, which were administered to appellant, the corroborative evidence did not sufficiently connect appellant with the commission of the larceny. 4 In support of this argument, appellant relies upon the decision of the Ninth Circuit in Ing v. United States. 5 There the court said in part:
(T)he rule appears to be well established that the corroborative evidence must be considered without the aid of the testimony to be corroborated, and that such corroborating evidence must connect or tend to connect the accused with the commission of the crime with which he is charged. * * * Such testimony is not sufficient if it requires the interpretation and direction of the testimony to be corroborated. * * * The facts and circumstances relied upon in this case for corroboration do no more than show an opportunity for the appellants to have committed the crimes or connect them with the perpetrators. 6
One year after Ing was decided, this court in Oxenberg v. State 7 rejected subsilentio Ing's analysis of Alaska's accomplice corroboration statute. In Oxenberg, we held that it was
impracticable to require that what the accomplice has said be put aside and that the other evidence be examined alone to see if it 'tends to connect the defendant with the commission of the crime.' * * * (C)orroborative evidence ought to be viewed in relation to, rather than apart from, the accomplice's narrative in order that it might be fairly and rationally appraised for whatever worth it may have. 8
Oxenberg elucidates the AS 12.45.020 language, 'tends to connect.' We said that if the corroborative evidence
can be brought into contact with the circumstances related by the accomplice, and if at all points of contact there is consistency and harmony, rather than incongruity and discord, then there is good ground for presuming that what the accomplice said was true. * * * The corroborative evidence fulfills the requirement that it tend to connect the defendant with the commission of the crime because it will 'serve as a means' of inducing in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. 9
We have consistently adhered to Oxenberg's criteria. 10 Our most recent reliance upon Oxenberg is found in Dimmick v. State. 11 There we said:
The statutory requirement of corroboration is based on an assumption that an accomplice might falsely accuse others of a crime in order to purchase for himself immunity from punishment. This assumption is dispelled and the statutory requirement satisfied when the corroborating evidence tends to induce in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. 12
We conclude that the state's corroborative evidence, apart from the results of the lie detector tests which appellant underwent, tended to induce a rational belief that the accomplice testified truthfully when she implicated appellant in the commission of the larceny in question. 13 We therefore hold that the trial court did not err in denying appellant's motion for judgment of acquittal.
This brings us to the crux of this appeal. Appellant argues that it was plain error for the trial court to have admitted testimony and a written report concerning the results of lie detector tests given him. While represented by counsel, appellant, prior to trial, consented to take a polygraph examination. 14 Pursuant to his consent, appellant was subjected to two polygraph examinations. During the impanelling of the trial jury, appellant's counsel inquired of the entire prospective panel whether anyone had ever taken a lie detector test. One prospective juror answered in the affirmative and in the presence of the panel, appellant's counsel then elicited an opinion from the juror that he did not believe polygraph machines to be infallible. 15 Counsel for appellant then asked the entire panel if they had done any reading on the subject of polygraph machines. One prospective juror answered in the affirmative and in the presence of the entire panel related that she was left with 'a very unfavorable impression' of polygraph machines on the basis of her reading. In his opening statement to the jury, appellant's trial counsel stated that the polygraph examinations in question were not of value.
As part of its case in chief, the prosecution called Sergeant Anderson of the Anchorage Police Department. Without objection from defense counsel, Sergeant Anderson was accepted as a qualified polygraph examiner. Anderson then testified, again without objection, as to the circumstances surrounding his administration of two separate polygraph examinations to appellant. Anderson testified that in his opinion the examinations revealed that deceptive answers were given to four crucial questions. No objection was made to this opinion evidence nor was any motion subsequently made to strike any portion of Sergeant Anderson's testimony. Instead, during the state's direct examination of the witness, counsel for appellant explicitly stated that he had no objection to the introduction into evidence of Sergeant Anderson's written report of appellant's polygraph examinations. Appellant's counsel also cross-examined Sergeant Anderson to a considerable extent concerning the general inadmissibility of polygraph results in the courts. 16
Prior to the conclusion of the trial, appellant's counsel requested the following instruction which was subsequently given by the trial court in its charge to the jury:
The results of a test by a polygraph machine, commonly called a lie detector, have been admitted by stipulation by the State and the Defendant. The polygraph is a scientific instrument which records certain physiological phenomena, such as changes in the pulse rate, blood pressure, and respiration. The polygraph machine has not yet achieved scientific reliability and is not an instrument that automatically and unerringly discloses a lie by the person being tested. 17
In Gafford v. State, we said by way of dicta, 'The general rule is that the results of polygraph tests are not admissible in evidence.' 18 In the case at bar, the manner in which the issue of polygraph reliability has been raised calls for a more detailed discussion of the subject.
The polygraph machine ordinarily consists of a cardiograph which registers pulse rate, a sphygmograph which measures blood pressure, a pneumograph which measures respiration, and usually a galvanometer which measures electrodermal responses. 19 19 The theory for using the polygraph to detect lies is that the act of lying causes conscious conflict in the mind of the examine, which produces an emotion of fear or anxiety, manifested by fluctuations in pulse rate, blood pressure, breathing, and perspiration. 20
As we said in Gafford, the general rule precludes admission of the results of polygraph tests. The authority usually cited as the first reported American case holding such evidnce inadmissible is Frye v. United States. 21 In Frye, the court said of expert testimony based on a test of blood pressure fluctuations (really a monograph rather than a polygraph);
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define....
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State v. Miller
...States v. Hilton, 772 F.2d 783, 785 (11th Cir.1985); United States v. Nelson, 606 F.Supp. 1378, 1384-85 (S.D.N.Y.1985); Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970); People v. Anderson, 637 P.2d 354, 358 (Colo.1981); Guesfeird v. State, 300 Md. 653, 658, 480 A.2d 800 (1984); Commonweal......
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